Citation Nr: 0033189
Decision Date: 12/20/00 Archive Date: 12/28/00
DOCKET NO. 97-29 311A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Paul,
Minnesota
THE ISSUE
Entitlement to an increased rating for chondromalacia, left
knee, post operative, currently rated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: North Dakota Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
David S. Nelson, Associate Counsel
INTRODUCTION
The veteran had active military service from July 1972 to
July 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1997 rating decision by the
St. Louis, Missouri, Regional Office which was issued through
the Fargo, North Dakota, Regional Office of the Department of
Veterans Affairs (VA). A notice of disagreement was received
in September 1997, and a statement of the case was issued in
October 1997. The veteran's substantive appeal was received
in October 1997. The veteran's claims file was subsequently
transferred to the St. Paul, Minnesota, Regional Office (RO).
A note in the claims file indicates that the veteran did not
appear for a scheduled March 1998 RO hearing.
A July 2000 rating decision denied entitlement to a total
compensation rating based on individual unemployability.
However, it does not appear that a notice of disagreement has
been received to initiate an appeal from that determination.
REMAND
The veteran's service-connected left knee disability has been
rated by the RO as 10 percent disabling under the provisions
of 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5257 (2000).
Code 5257 applies to disability manifested by recurrent
subluxation or lateral instability. From a preliminary
review of the medical evidence, it appears that the veteran
also suffers from degenerative joint disease of the left knee
(as well as the right knee). VA's General Counsel has held
that under certain circumstances, a separate disability
evaluation may be assigned for arthritis of the knee in
addition to the rating for instability under Code 5257. See
VAOPGCPREC 9-98 (August 14, 1998) and VAOPGCPREC 23-97 (July
1, 1997). Appropriate RO action to consider the propriety of
separate ratings in this case is necessary.
Additionally, the Board notes that by rating decision in
January 1999, the RO assigned a temporary total rating for
the veteran's left knee under 38 C.F.R. § 4.30 for the period
from August 28, 1998, to December 1, 1998, with continuation
of the 10 percent rating effective from December 1, 1998. In
September 1999, a communication was received from the RO in
which he expressed disagreement with that determination. It
is not clear whether the veteran was expressing disagreement
as to the time period for the temporary total rating or
merely disagreement with the continuation of the 10 percent
rating after December 1, 1998, or both. However, as the
increased rating issue was already in appellate status at the
time of the RO's grant of a temporary total rating, the Board
believes it reasonable to view the temporary total rating
issue, including the effective dates of the temporary total
rating, as included under the umbrella of the increased
rating claim. Although the criteria for a temporary total
rating are different from the schedular rating criteria, in
the interests of judicial economy, the Board finds that it
properly has appellate jurisdiction over the temporary total
rating issue as well.
Accordingly, this case is REMANDED for the following actions:
1. Any pertinent VA and private medical
records (not already of record)
documenting ongoing treatment for the
veteran's left knee disability should be
associated with the claims file.
2. The veteran should be afforded a VA
medical examination to determine the
nature and severity of his service-
connected left knee disability, to
include whether any arthritis of the left
knee is related to the service-connected
left knee disability. The claims file
must be made available to the examiner
for review in connection with the
examination. All necessary tests and
studies, including x-rays, should be
accomplished, and complaints and clinical
manifestations should be reported in
detail. Following the examination and a
review of pertinent records associated
with the claims file, the examiner is
requested to offer opinions as to: (a)
whether there is slight, moderate or
severe recurrent subluxation or lateral
instability; (b) whether any arthritis of
the left knee is related to the service-
connected left knee disability or cannot
be reasonably differentiated from the
service-connected left knee disability.
If the examiner finds that arthritis of
the left knee is not etiologically
related to the service-connected left
knee disability, then the examiner should
offer an opinion as to whether any
arthritis of the left knee has been
aggravated by the service-connected left
knee disability and, if so, to what
degree. A detailed rationale for all
opinions expressed is hereby requested.
3. The RO should then review the
expanded record and determine whether a
rating in excess of 10 percent for the
veteran's service-connected left knee
disability is warranted and also whether
a separate rating for arthritis of the
left knee is warranted under VA General
Counsel opinions VAOPGCPREC 9-98 and 23-
97. The RO should also consider whether
an extension of the temporary total
rating which was effective from August
28, 1998, to December 1, 1998, is
warranted under the criteria of 38 C.F.R.
§ 4.30. The veteran and his
representative should be furnished a
supplemental statement of the case (to
include the temporary total rating issue
under 38 C.F.R. § 4.30) and be afforded
the applicable opportunity to respond.
The case should then be returned to the
Board for appellate review.
The purpose of this remand is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The veteran and his representative are free to
submit
additional evidence and/or argument in connection with the
matters addressed by the Board in this remand.
ALAN S. PEEVY
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).